Re McBain; Ex Parte Australian Catholic Bishops Conference

The High Court considered applications brought by the Australian Catholic Bishops Conference and the Commonwealth Attorney-General, ex rel. the Episcopal Conference, seeking writs of certiorari. These applications concerned a prior, concluded litigation in the Federal Court. The applicants were not parties to the original Federal Court proceedings and had not appealed or sought constitutional relief in relation to that judgment. The Attorney-General's application also sought to affirm the operation of a State law as not inconsistent with federal law under section 109 of the Constitution.

The central legal issues before the High Court were whether the claims presented by the applicants constituted a "matter" within the meaning of Chapter III of the Constitution, thereby engaging the Court's original jurisdiction. Specifically, the Court had to determine if a matter arose under section 75(v) or section 76(i) of the Constitution independently of any right of appeal, and if so, whether relief should be granted in the exercise of the Court's discretion. The Court also considered whether certiorari was available against a judge of a federal superior court for non-jurisdictional error of law on the face of the record, and the factors relevant to the exercise of discretion in refusing such relief, particularly when the applicants were not parties to the original litigation.

The Court ultimately dismissed the applications. While acknowledging the potential for a broad interpretation of "matter" as suggested by cases like *Mellifont v Attorney-General (Q)*, the Court found that the claims before it did not give rise to a justiciable "matter" under Chapter III of the Constitution. The applicants, not being parties to the original litigation and lacking a direct interest in the outcome, could not establish the necessary standing or a genuine controversy to invoke the Court's original jurisdiction for certiorari in this context. The Court also noted reservations regarding the assumption that the *Sex Discrimination Act 1984* (Cth) was a law with respect to external affairs, and raised observations about the capacity of a State executive to abstain from enforcing its own legislation. The applications were dismissed with costs.